As soon as Donald Trump won the presidential election on Nov. 8, an unusual word started getting traction in Google searches: emoluments.
Emoluments, Merriam-Webster tells us (as part of its always-savvy social media strategy), are payments or benefits. Interest in the term spiked when those intimately familiar with the Constitution noted that a clause in Article I of the country’s founding document bars elected officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” A possible example: Trump owns a stake in the hotel in the Old Post Office in Washington and in Trump Tower in New York. The former has regularly played host to representatives of foreign governments since the election; the latter rents space to the Industrial and Commercial Bank of China, owned in part by the Chinese government.
Opponents of Trump’s have rallied around the idea that these business relationships are a violation of the emoluments clause — and, perhaps, that he should therefore be removed from office. The watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit on Monday that aims to challenge Trump in the courts, arguing that he has violated that clause.
This raises a broader question, though. We are all aware, thanks to the examples of Richard Nixon and Bill Clinton, that Congress can punish a sitting president through the power of impeachment. If Congress chose to do so — if it were run by members of the opposition party, for example — it could raise questions about the emoluments clause immediately. But to what extent can outside groups or individuals hold the president accountable?
The answer, after talking to two experts on constitutional law, seems to be that average Americans have very little recourse for limiting the power of the president, including through the use of lawsuits. Perhaps the only significant point of leverage is the one that will arrive on the first Tuesday after the first Monday in November 2020.
The legal system largely shields the president of the United States from judgment in the courts over the work he does as president. As president, Trump could still face civil action from things that precede his time in office. Last week, a former “Apprentice” contestant sued Trump for defamation after he called her a liar for suggesting he’d sexually assaulted her. Since that predates his time in office, it’s fair game, Columbia Law School professor Gillian Metzger told me when we spoke by phone on Monday.
“Any lawsuit that’s targeting President Trump as president on the basis of official action is going to run into a lot of jurisdictional roadblocks,” Metzger said. “But the defamation suit or a libel suit — anything based on actions undertaken before President Trump assumed office — is a suit that the court has ruled can go forward.” That was established in Clinton v. Jones, the sexual harassment lawsuit filed by Paula Jones against Bill Clinton.
That suit eventually resulted in the impeachment of Clinton — but not as a punitive measure. As in the defamation suit filed against Trump, the penalties from the case would have been civil. Clinton’s impeachment resulted from his having offered false statements about his extramarital relationships under oath during the process of being deposed. Those lies were offered while Clinton was president, though not as part of his official duties.
When it comes to his official duties, Trump has more protections.
“There’s an amorphous doctrine called the ‘political question doctrine,'” explained Louis Seidman, Carmack Waterhouse Professor of Constitutional Law at Georgetown University, “that shields from judicial review activity which is thought to involve political questions.” If something is a political question versus a legal one, courts generally decline to get involved. In Nixon v. United States, for example, a judge who had been removed from office, Walter Nixon, asked the court to reject his impeachment on constitutional grounds. The court declined to take up the case, determining that the question was a political one.
There does exist a mechanism for average citizens to sue the government, Metzger explained. The Administrative Procedure Act, passed in 1946, allows for lawsuits against government agencies or officials — except the president. “The Supreme Court has interpreted the APA as not applying to the president,” she said. So while actions undertaken by government agencies managed by the president can be countered by lawsuit and the president’s power can be tempered as a result — for example, the suit against the National Labor Relations Board that challenged Barack Obama’s ability to make recess appointments — Trump himself cannot be.
Both Metzger and Seidman were skeptical that the CREW lawsuit would succeed, in part because it would be difficult to argue that the organization had standing to sue as having been negatively affected by Trump’s alleged violation of the emoluments clause. (Its case? That it has more work to do in tracking government conflicts as a result.) But Seidman noted that winning the lawsuit might not be the primary goal; instead, it may be an attempt to shift political opinion of the president. (A lawyer affiliated with the suit told the New York Times, for example, that one goal was forcing the release of Trump’s tax returns.)
“Judges are not immune from political pressure,” Seidman said. “If Trump were to become very unpopular and there was a lot of political pressure generated to do something about it, then I can easily imagine judges relaxing some of the obstacles that exist otherwise.”
He pointed out that a number of legal questions surrounded the release of recordings related to Watergate in the 1970s. “The Supreme Court just blew past all of them,” he said, “and I think with some historical hindsight, the president’s popularity rate was in the teens and there had been a judgment made by the country that it was time for him to go. In circumstances like that, courts do things that they wouldn’t otherwise.” (For what it’s worth, Trump’s favorability ratings are lower than any other new president on record.)
“The main point is: If Trump’s going to be defeated or if his presidency is going to be limited,” Seidman explained, “it’s going to be because of political mobilization and not because some legal principle like the emoluments clause stands in his way.”